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Alluri China Venkata Suryanarayana Raju Vs. Nagumalli Venkata Subbiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1946Mad78; (1945)2MLJ374
AppellantAlluri China Venkata Suryanarayana Raju
RespondentNagumalli Venkata Subbiah and ors.
Excerpt:
- - 270 of 1940 was dismissed as incompetent on 1st september, 1941, and an application to set aside the dismissal for default also proved unsuccessful, as it was held that order 9, rule 9, civil procedure code, did not apply to pro ceedings under act iv of 1938. the appellant then filed another application, i. if the word is thus understood in its ordinary sense, the proviso clearly bars the application made by the appellant in the court below, for it enacts that the decree shall then be executed as it stands. for even if it does not, the present application, having been filed long after the expiry of 60 days from the order granting stay, is clearly barred by limitation under the proviso......20 of the act and stay was ordered on the 2nd april, 1938. within sixty days of that order, he filed an application, i.a. no. 258 of 1938, under section 19 for scaling down the decree debt. after some evidence was taken in the matter, the petition was dismissed for default of appearance of the appellant on 31st august, 1939. an appeal against that order c.m.a. no. 270 of 1940 was dismissed as incompetent on 1st september, 1941, and an application to set aside the dismissal for default also proved unsuccessful, as it was held that order 9, rule 9, civil procedure code, did not apply to pro ceedings under act iv of 1938. the appellant then filed another application, i.a. no. 623 of 1939, under section 19 for the same relief and that was dismissed as having been filed out of time......
Judgment:

Patanjali Sastri, J.

1. This is an appeal brought by the judgment-debtor under a decree passed in O.S. No. 14 of 1935 on the file of the District Court of East Godavari against an order refusing to scale down the decree under Section 19 of the Madras Agriculturists' Relief Act, 1938.

2. The facts are briefly these : The decree was passed on 29th January, 1937, for Rs. 17,371. The appellant applied for stay of the decree under Section 20 of the Act and stay was ordered on the 2nd April, 1938. Within sixty days of that order, he filed an application, I.A. No. 258 of 1938, under Section 19 for scaling down the decree debt. After some evidence was taken in the matter, the petition was dismissed for default of appearance of the appellant on 31st August, 1939. An appeal against that order C.M.A. No. 270 of 1940 was dismissed as incompetent on 1st September, 1941, and an application to set aside the dismissal for default also proved unsuccessful, as it was held that Order 9, Rule 9, Civil Procedure Code, did not apply to pro ceedings under Act IV of 1938. The appellant then filed another application, I.A. No. 623 of 1939, under Section 19 for the same relief and that was dismissed as having been filed out of time. Nothing daunted he filed the present application I.A. No. 228 of 1942, praying for the very same relief. The Court below dismissed it on two grounds, namely, (1) that it was barred by limitation and (2) that the previous order of dismissal of I.A. No. 258 of 1938 operated as res judicata. Against that order the present G.M.A. has been brought.

3. The question for determination turns on the true interpretation of the proviso to Section 20 of the Act. The proviso says:

Where within 60 days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 or where an application has been so made, and is rejected, the decree shall be executed as it stands, notwithstanding anything contained in this Act to the contrary.

4. It is argued that the word 'rejected' must be understood in the same sense in which it is used in Order 7, Rule 11, Civil Procedure Code, and must be taken to mean rejected owing to some formal defect in the application. We see no reason why the word should be understood in that restricted sense in the proviso. ' Rejected ' is a plain English word and must signify rejection on any ground whatever including default of appearance of the petitioner. If the word is thus understood in its ordinary sense, the proviso clearly bars the application made by the appellant in the Court below, for it enacts that the decree shall then be executed as it stands. In this view, it is unnecessary to consider the question whether the previous order of dismissal of I.A. No. 258 of 1938 operates as res judicata; for even if it does not, the present application, having been filed long after the expiry of 60 days from the order granting stay, is clearly barred by limitation under the proviso.

5. The appeal is therefore dismissed with costs.


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